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Anderson v. Ballard

United States District Court, E.D. Kentucky, Central Division, Frankfort

March 16, 2018

RODNEY BALLARD, et al., Defendants.



         This matter is before the Court upon separate motions to dismiss Plaintiff's Complaint for failure to state a claim filed by Defendants Kentucky Department of Corrections (“KDOC”) employees Rodney Ballard, Brenda Beehler, Deresa Burkett, Rhonda Coleman, Cookie Crews and Christy Jolly [R. 3] and medical providers Kim Cook, Amanda Hardin, Kelly Mike (incorrectly identified in the Complaint as “Mike Kelly”), Frederic Kemen, Thadd Manning, Tania Pineiros, and Jennifer Whelan [R. 9]. Although Plaintiff, David Anderson, filed a response to the motion filed by the KDOC employees, [R. 5] he has not filed a response to the motion filed by the medical providers and the time for doing so has expired. [R. 8.]


         Anderson is an inmate confined at the Kentucky State Reformatory (“KSR”) in LaGrange, Kentucky. Proceeding without an attorney, he filed a civil rights action in the Franklin County, Kentucky, Circuit Court asserting constitutional and state law claims based upon his allegations that Defendants failed to provide him with adequate medical care. [R. 1-1.] Because Anderson asserted violations of his Eighth and Fourteenth Amendment rights, this case was removed to this Court. [R. 1.]

         From what the Court is able to ascertain, Anderson alleges that he was denied adequate medical care because: (1) Defendants Mike, APRN, and Dr. Manning, M.D., failed to supply medical treatment or medical supplies to Anderson; (2) Dr. Manning refused to treat Anderson for his asthma; (3) Mike refused to see Anderson and treat him for back and knee pain; (4) Mike refused to treat Anderson for unusually high arches; (5) Mike refused to increase the number of diapers provided to Anderson from 28 to 36; (6) Mike refused to prescribe ointment for Anderson's diaper rash; (7) Mike refused to issue Anderson earwax removal drops to loosen up earwax in his ear; and (8) Mike stopped providing Anderson with acid reflux medication. [R. 1-1 at 2-3, 6.][1]

         Anderson's Complaint refers to and attaches administrative grievances that he claims to have filed with respect to each of his claims to his Complaint. [R. 1-1.] Anderson generally alleges that the remaining Defendants (other than Dr. Manning and Mike) breached their duty to exercise appropriate care to provide for Anderson's well-being “by failing to properly provide medical services” in response to the grievances Anderson filed against Dr. Manning and Mike and, instead, by agreeing that the care provided by Dr. Manning and Mike was appropriate. [R. 1-1 at 5-6.] Anderson alleges that the negligence of each of the Defendants was a “substantial factor” in causing his medical needs not to be met, which he alleges violates his Eighth Amendment right to be free from cruel and unusual punishment. [R. 1-1 at 6.]



         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 F. App'x 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all well-pleaded facts in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because the plaintiff here is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

         A complaint must contain allegations, either expressly stated or necessarily inferred, with respect to every material element necessary to sustain a recovery under some viable legal theory. Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013). But the complaint must be dismissed if it undoubtedly fails to allege facts sufficient to state a facially-plausible claim. Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th Cir. 2012). A complaint may be dismissed for failure to state a claim if “it fails to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

         The sufficiency of the complaint is generally tested with reference only to the face of the complaint itself. Burns v. United States, 542 F. App'x 461, 466 (6th Cir. 2013). This includes documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may also consider “other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice.” Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011). If a plaintiff refers to a document in his complaint and it is central to his claim, the document will be considered part of the pleadings even if the plaintiff does not attach it to his complaint if the defendant attaches it to the motion to dismiss. Campbell v. Nationstar Mtg., 611 F. App'x 288 (6th Cir. 2015) (citing Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)). See also Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011).


         First, although Anderson briefly references the Fourteenth Amendment of the United States Constitution at one point in his Complaint [R. 1-1 at 2], he fails to allege any facts that would support a Fourteenth Amendment Claim for violation of his due process or equal protection rights. Generally, pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even so, the principles requiring generous construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The Court has an obligation to liberally construe a complaint filed by a person proceeding without counsel, but it has no authority to create arguments or claims that the plaintiff has not made. Coleman v. Shoney's, Inc., 79 F. App'x 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with some effort at developed argumentation.”); Superior Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148 (D. Mass. 2003) (“While the allegations of the complaint are construed favorably to the plaintiff, the court will not read causes of action into the complaint which are not alleged.”). Thus, Anderson's failure to allege any facts that would give rise to a Fourteenth Amendment claim is a sufficient reason to dismiss this claim.

         Moreover, the Supreme Court has expressly held that where a constitutional claim is covered by a specific constitutional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under the broad rubric of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”). Because the Eighth Amendment is the proper vehicle to assert challenges to Anderson's medical care, his claim under the Fourteenth Amendment fails as a matter of law, and must be dismissed. See Cooleen v. Lamanna, 248 F. App'x 357, 362 (3rd Cir. 2007) (viability of claim under Eighth Amendment to challenge medical care of prisoner forecloses availability of substantive due process claim); Bell v. Johnson, 308 F.3d 594, 609-10 (6th Cir. 2002) (prisoner's claim that ...

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